Critical Hit to Innovation: Why Competition Law Must Embrace Creativity in Gaming

CRITICALH ITTOINNOV ATIONWH YCOMPETI TIONLAW MUSTEMB RACECRE ATIVITYIN GAMING CRITICAL HIT TO INNOVATION: WHY COMPETITION LAW MUST EMBRACE CREATIVITY IN GAMING OUTSTANDING LLM DISSERTATIONS CREATe Working Paper 2025/11 SEBASTIAN MARTIN i Editorial note 2025 brings the fifth edition of the Outstanding LLM Dissertations. Every year, the CREATe teaching team comes together to select a small number of the excellent master dissertations of the University of Glasgow students and offer their authors an opportunity to showcase their work in the CREATe Working Paper series. Marking a small, but still a significant, anniversary, we have decided to open the Outstanding LLM Dissertations initiative to the students enrolled in the LLM in International Competition Law & Policy programme, and consider their work alongside the dissertations submitted by the LLM In Intellectual Property & Digital Economy students. This addition represents the widening scope of CREATe's research and the growing variety of programmes we offer to the School of Law students. Addressing the increasingly complex dynamics between creativity, markets and technology requires an interdisciplinary approach, informed by a wide array of regulatory fields. And this is what drives our teaching and supervision of master dissertation projects. While as supervisors we provide guidance to the LLM students writing their dissertations, it is the students' independent work which makes some of the dissertations truly excellent. What you are holding in your hands is the outstanding dissertation selected for publication in the Working Paper series in 2025. We hope you enjoy the read. Ula Furgał Managing editor, CREATe Working Papers 1 Critical Hit to Innovation: Why Competition Law Must Embrace Creativity in Gaming Sebastian Martin* Outstanding LLM Dissertations 2025 Abstract This paper critically examines competition law’s current approach to innovation in the video gaming industry, arguing that its prevailing one-dimensional, outcome-focused framework – typically measured through R&D expenditure, patent activity, and content output – fails to capture the dynamics that genuinely promote competition and deliver value to gamers. It contends that the diversity, quality, and direction of innovation are equally important, and that these are best understood by accounting for the creativity and processes that underpin the sector. This is achieved by distinguishing between ‘innovation’ as the commercial implementation of novel products or methods, and ‘creativity’ as the original, often smaller, collaborative, and iterative processes that give rise to them, frequently driven by smaller competitors and users. This paper advances a ‘creativity lens’, incorporating creativity as a parameter of competition alongside traditional innovation metrics. This framework emphasises the openness, autonomy, and diversity of the creative processes through which games are made, modified, and distributed, prioritising the meaningful participation of users and indie studios. Applying a creativity lens to the Microsoft/Activision Blizzard merger demonstrates how an outcome-based focus overlooked harms to user creativity and indie studio innovation, particularly in the context of cloud gaming. This paper concludes that recognising creativity as a competitive factor better safeguards gamer welfare and fosters more meaningful, long-term innovation in the industry. * Sebastian Martin is a graduate of LLM in International Competition Law & Policy programme at the University of Glasgow. A special thank you goes to Dr Magali Eben for her invaluable supervision, guidance, and encouragement throughout the course of this dissertation and my wider academic career. A sincere thank you also to the CREATe team for giving me the opportunity to publish my paper. 2 Table of Contents 1. Introduction ................................................................................................................... 3 2. Competition Law’s Current Focus on Innovation .............................................................. 5 2.1. Overview of the Gaming Industry ............................................................................. 5 2.2. Defining Innovation ................................................................................................. 7 2.3. The Relationship Between Competition and Innovation ............................................ 9 2.4. Assessing Innovation in Gaming .............................................................................. 11 2.5. Moving Past a One-Dimensional Understanding of Innovation .................................. 12 3. The Importance of Creative Processes in Gaming ........................................................... 14 3.1. What is Creativity? ................................................................................................. 14 3.2. Do Gamers Value Creativity?................................................................................... 15 3.2.1. TVGS v Ubisoft Case Study ................................................................................. 17 3.3. Why Process Matters ............................................................................................. 19 3.4. Creativity Lens ...................................................................................................... 21 4. Microsoft/Activision Blizzard Through a Creativity Lens ................................................. 23 4.1. Case Summary ..................................................................................................... 23 4.1.1. The First Transaction ........................................................................................ 23 4.1.2. The Second Transaction ................................................................................... 24 4.2. User Creativity ..................................................................................................... 25 4.2.1. H2M and the Call of Duty Modding Ecosystem .................................................. 27 4.3. Indie Studio Creativity .......................................................................................... 28 5. Conclusion .................................................................................................................... 31 Bibliography ........................................................................................................................ 34 3 1. Introduction In gaming, competition law often equates ‘more new content’ with ‘more innovation and competition’. However, this detaches from analysis the structural conditions and procedural freedoms that enable original creation and meaningful participation. These are inseparable from innovation: constraints on small game developers and user co-creation processes may leave prices unchanged whilst eroding the creativity and real innovations gamers value. Gaming is a ‘creative industry’, yet the competitive forces that impact it, and the harms that may arise, are not fully captured by traditional legal and economic metrics. The global video game industry is economically and culturally influential: it is the largest creative entertainment sector, 1 estimated at almost $355 billion. 2 The market is structured as a mix of dominant AAA studios and smaller independent (‘indie’) studios, the former with access to more money and resources. Uniquely, even though economic success is concentrated with AAA studios, indie games, and user mods can go from obscure releases to global hits virtually overnight, exerting competitive pressure on incumbents. 3 This dynamic, rare in traditional markets, highlights how the creativity of indie studios and users is powerful and should be considered. Despite the value generated by creative processes in gaming, competition law’s metrics struggle to capture them, relying on outcomes instead. Patent activity and R&D spending are easier to measure, which increases legal certainty, with companies like Ubisoft appearing highly innovative. 4 Yet an output-only focus can mask creative decline, with many of Ubisoft’s titles criticised for repetitive formulas and glitchy releases. Consumers then become desperate for original titles like ‘Schedule I’ – made with a lower budget, but more creative. This disconnect exposes a regulatory blind spot in gaming; traditional metrics quantify innovation as output, not as quality, variety, or creative origin. Much of gaming’s value arises from creative processes that do not register on competition’s radar because they are hard to quantify or generate few patents. 1 Ayse Yasar et al., ‘Gaming Without Frontiers: Copyright and Competition in the Changing Video Game Sector’ (CREATe Working Paper 2023/10, 2023), 4 <https://eprints.gla.ac.uk/307648/2/307648.pdf> accessed 10 July 2025. 2 Jessica Clement, ‘Video game industry - Statistics & Facts’ (Statista, 6 November 2024) <https://www.statista.com/topics/868/video-games/#topicOverview> accessed 8 August 2025. 3 Smash JT, ‘Schedule I Is Already More Popular Than Assassin’s Creed Shadows…’ (Smash JT, March 2025) <https://www.smashjt.com/post/schedule-i-is-already-more-popular-than-assassin-s-creedshadows> accessed 9 July 2025. 4 Hilton Webster, ‘How many games has Ubisoft made?’ (TheGamer, 14 October 2024) <https://www.thegamer.com/how-many-games-ubisoft-made/> accessed 30 June 2025. 4 Against this, the sector remains largely unexamined, 5 with past regulatory scrutiny occurring mainly through occasional merger reviews. 6 Only recently has academic research begun to interrogate the relationship between innovation and creativity, notably by Thomas et al. in the context of cloud gaming, who frame it as an innovation-creativity dichotomy. Their work focuses on modding and virtual worlds, calling for a greater recognition of creative processes. 7 This paper takes a similar stance but adopts a broader sectoral view beyond cloud gaming, considering other competitive elements such as the role of smaller, yet creativity-led, indie studios and users. It also suggests the adoption of a ‘gamer welfare’ standard and a ‘creativity lens’ to improve enforcement. This paper argues for going further than Thomas et al.’s ambiguous ‘recalibration’ of competition and consumer welfare, 8 which leaves authorities likely reliant on more easily administrable output metrics. Our new analytical tools instead operationalise creativity as a dimension of competition in gaming, compelling regulators to evaluate process-level creativity alongside innovation outcomes. The remainder of this paper is structured as follows: Chapter 2 provides an overview of the gaming industry, then defines innovation and its relationship to competition. It assesses innovation in gaming and argues that competition law must move past its one-dimensional understanding of innovation as an outcome, also accounting for its innovation diversity, quality, and direction. Chapter 3 crystallises the concept of creativity and highlights the limits of innovation further by contrasting it with how creative processes should be considered as another metric. It is then demonstrated that gamers do care about creativity, not just innovation outcomes, by a case study of the concurrent release of two AAA and indie studio titles. Building on these insights, a ‘creativity lens’ is proposed for competition law, which enables authorities to better protect creativity and innovation’s quality, diversity, and direction. Chapter 4 applies the creativity lens in practice through an analysis of Microsoft/Activision Blizzard . 9 It reexamines the merger’s implications for innovation by looking at two creative process dimensions overlooked in the official review – user creativity and indie studios. This analysis shows how a creativity-centric assessment might alter the enforcement narrative and illustrates 5 Yasar (n 1). 6 Alba Martinez, ‘A Fortnite and Odd Days: The Console Wars’ (2022) 6(2) MCLR 51, 52. 7 Amy Thomas et al., ‘Competition in the cloud gaming market: proposing the innovation–creativity dichotomy’ (2025) 8(2) IELR 1. 8 ibid 2. 9 CMA, ‘ Microsoft/Activision Blizzard merger inquiry’ (CMA Website, 6 July 2022) <https://www.gov.uk/cma-cases/microsoft-slash-activision-blizzard-merger-inquiry> accessed 29 July 2025. 5 the practical value and challenges of integrating a creativity lens into competition enforcement. Chapter 5 concludes. Overall, this paper is a call to academics and regulators to recognise that not all innovation is equal. By critically examining it through a creativity lens, this study aims to contribute a more nuanced legal understanding – one that understands where gaming’s value stems from, and one that equips competition law to protect the next evolution of creative innovation. 2. Competition Law’s Current Focus on Innovation This chapter argues that competition law's current perspective on innovation and output is inadequate. It does not account for other parameters of innovation and overlooks the suppression of creative processes in gaming. 2.1. Overview of the Gaming Industry Creative industries like gaming originate from creativity, skill, and talent, holding the potential for wealth creation through the generation and exploitation of intellectual property (IP). 10 They rely on new technologies and individual creativity, producing goods that carry cultural and economic significance. 11 The incumbent producers are AAA studios, like ‘Activision’ and ‘Ubisoft’, dominating mainstream marketplaces with their large resource pool and mainstream games like ‘Call of Duty’. Contrastingly, indie studios produce niche titles but may also find commercial success. Usefully, Yasar et al. provide an overview of the industry’s actors. 10 Xavier Greffe, ‘Managing Creative Enterprises’ (WIPO Creative Industries Booklet No 3, December 2006), 10 <https://www.wipo.int/edocs/pubdocs/en/copyright/938/wipo_pub_938.pdf#:~:text=later%20when %20the%20product%20is,as%20well%20as%20their%20own> accessed 9 July 2025. 11 ibid 10-11. 6 Figure 1: Key Games Sector Actors’ in Ayse Yasar et al., ‘Gaming Without Frontiers: Copyright and Competition in the Changing Video Game Sector’ (CREATe Working Paper 2023/10, 2023). Gaming is a diverse industry with users, or ‘gamers’, as central to the sector. Its key actors are interdependent on each other, but competition usually remains within their respective industries. To play video games, a device is required, provided by hardware manufacturers. Gamers must also purchase a game to play, offered through an overlap between ‘developers’ and ‘publishers’. The marketplace historically consisted of physical shops, later taking a more digital distribution form through online purchases of digital games, but with gamers holding similar legal IP rights as before. More recently, cloud gaming subscriptions, akin to streaming services, have become prominent – gamers pay a cheaper price compared to full purchase and have access to an online library of games, but do not own any of them outright. The library handles the technical aspects of the game’s execution on its servers and streams the video output to the user’s device. Importantly, these services shift IP control back to platform owners and raise concerns that were overlooked in the Microsoft/Activision merger, 12 like the possibility of restricting creativity. 12 Microsoft/Activision Blizzard (n 9). 7 Gaming has high fixed development costs but negligible marginal distribution costs, particularly via digital platforms. Therefore, a game can go from a niche indie release to a global hit overnight more easily than with physical shops. 13 This is important for competition law as it means small firms generate considerable pressure on dominant firms as they may release a marketdisrupting game at any time. This is a rare dynamic in traditional markets, and a reason indie firms require consideration during competition assessments due to the major disruptive and competitive forces their innovations can produce. 2.2. Defining Innovation The consumer welfare standard refers to the benefits consumers derive from competitive markets, including elements like lower prices and higher quality. 14 In many competition law jurisdictions it is used as the benchmark against which the effects of business practices and mergers are assessed. It improves with productive and allocative efficiencies – when goods are produced at the lowest cost and resources are optimally distributed. However, the exact definition of consumer welfare remains contested: some equate it strictly with consumer surplus, referring to the difference between the price they are willing to pay and do; others see it as a fluid concept shaped by the courts. 15 This paper argues that although consumer surplus is usually synonymous with consumer welfare, it is fluid and can be developed. A ‘gamer welfare’ standard will be argued as preferable, better capturing the nuances of gaming’s markets and its consumers. Innovation, or dynamic efficiency, is a parameter of competition, focusing on technological progress and product variety, not just static price effects. 16 Nonetheless, it still has the power to drive prices down and quality up. 17 For competition purposes, the OECD defines it as ‘the successful development and application of new knowledge’. 18 A frequently made distinction is between ‘product’ and ‘process’ innovations, separated by their magnitude of market effect as 13 Ritwik Mitra, ‘Indie Games that Became Major Success Stories’ (30 December 2024) <https://gamerant.com/indie-games-major-success-stories/> accessed 9 July 2025. 14 OECD, ‘The Consumer Welfare Standard - Advantages and Disadvantages Compared to Alternative Standards (Background Note, 25 April 2023), 11 <https://one.oecd.org/document/DAF/COMP(2023)4/en/pdf> accessed 7 August 2025. 15 ICN, ‘Competition Enforcement and Consumer Welfare’ (ICN Conference, Hague, May 2011), 20 <https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2019/11/SP_CWelfare2011.pdf> accessed 2 August 2025. 16 See e.g., C-413/14 Intel v Commission [2017] OJ C374/2, [134]; European Commission, ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements’[2023] OJ C259/1, footnote 29. 17 Gönenç Gürkaynak, Innovation Paradox in Merger Control (1st ed, Concurrences 2023), 28. 18 Aura Pabón, Antonio Capobianco, ‘Competition and Innovation, Part I: a theoretical perspective’ (Background Note, 2 May 2023), 6 <https://one.oecd.org/document/DAF/COMP(2023)2/en/pdf> accessed 9 July 2025. 14 This approach is less controversial considering the recent practices of the EU and UK authorities, focusing on wider digital economy issues. Digital market legislation has been asymmetric, applying to digital gatekeeper firms with substantial market power, and focused on interoperability, contestability, and wider consumer harms. 46 This reveals a shift away from traditional methods, and a new focus on the pre-conditions of innovation. Competition does not need to rely on the orthodox but can adapt to continue to protect competition and consumers. Not doing the same in gaming risks inadequate enforcement. A full understanding of innovation includes the processes, 47 which in gaming are the diverse range of creativity resulting in valuable gaming innovations. Polycentricity thus supports the incorporation of creative processes as legitimate in gaming. By recognising that innovation arises from multiple sources of creativity, polycentricity demands that competition enforcement look beyond output and instead safeguard gaming’s diverse innovation contributors. Accordingly, an approach that fails to engage with these competitive dynamics risks entrenching dominant firms, overlooking anti-competitive practices that marginalise creativity, and neglecting harms to the quality, diversity, and direction of innovation. A polycentric model is therefore not merely descriptive but prescriptive, guiding regulators to foster the pluralism, openness, and creative autonomy needed to sustain innovation in gaming by looking beyond it as purely output-maximising. 3. The Importance of Creative Processes in Gaming As established, the dominant competition parameter of creative market analysis has been innovation. This chapter defines creativity, substantiates the claim that gamers do care about creativity and that competition law should too. It then demonstrates why process matters and argues that a creativity lens should be introduced, improving competition enforcement by enabling the consideration of creativity and innovation’s diversity, quality, and direction. 3.1. What is Creativity? ‘Creativity’ and ‘innovation’ lack specific legal meanings and a clear relationship, leading to debate on how they relate. Christie contends that not all creativity leads to innovation as the distinction lies in the novelty of the outcome, innovation being a subset of creation which 46 Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) [2022] OJ L 265/1. 47 Lianos (n 45) 183. 15 involves creating something that had not previously existed. 48 But as the use of ‘innovation’ and ‘creativity’ varies between disciplines, their meaning is likely purposive. For gaming, this paper proposes to separate the two based on ‘original creative process/input’ and ‘novel innovation outcome’. ‘Creativity’ is the process which generates original ideas, including the activities of experimentation, risk-taking and iteration, 49 evincing the free and creative choices of creators but not requiring commercialisation. ‘Innovation’ entails implementing these concepts into commercialised novel products or processes, usually leading to wealth creation. 50 Recognising creativity and innovation as distinct affects the way they are treated. As commonly known in IP, patent law applies to innovations, requiring novelty, inventiveness, and applicability; copyright law protects original works, but does not compel novelty. One can independently create a work nearly identical to an existing one and still enjoy copyright protection, provided that it was not copied. This divergence illustrates that the law already relies on a separation of creativity and innovation. Originality is about the process and source of expression; novelty relates to the outcome. Positioning creativity as a subset of innovation, per Christie, collapses this important distinction. As discussed later, focusing on creativity also allows for a more nuanced assessment of innovation: incorporating process in analysis does not just highlight creativity; it enhances how innovation is understood. It expands its parameters from output to include its quality, diversity, and direction, allowing regulators to evaluate not just whether innovation is occurring, but whether competition law is supporting the creative processes that lead to it. Christie was correct that not all creativity will lead to innovation – but this is due to it being a process, not a subset, of innovation. 51 Collapsing the two risks undervaluing the creative processes consumers value. 3.2. Do Gamers Value Creativity? This section explores gamer perspectives and evidence supporting that gamers care about creativity. Therefore, including creative processes in analysis and the later-discussed creativity lens is justified. 48 Andrew Christie, ‘Creativity and Innovation: A Legal Perspective’ in Leon Mann and Janet Chan (eds), Creativity and Innovation in Business and Beyond: Social Science Perspectives and Policy Implications (1st ed, Routledge 2011) 104. 49 Mauricio Castillo-Vergara et al., ‘The Creative Process and Innovation: The Role of Knowledge Management and Industrial Cluster’ (2022) 26(6) IJIM 1. 50 David Cropley et al., ‘Measuring Creativity for Innovation Management’ (2011) 6(3) JTMI 14, 14. 51 Christie (n 48) 105. 16 Related gaming literature supports that creativity is something consumers value. As Zackariasson and Wilson note, indie developer Schafer sourced more than $1 million in less than 24 hours from gamers to develop his next game. Some argue that this funding stemmed from ‘a growing pent-up demand for really good, creatively designed games that aren’t coming out of the big publishers’. 52 This signals two things: users are both providers and users of value in gaming, and creativity is a demand not being currently met. This raises the question of why the market is not delivering what consumers want, and which law is best suited to help? One could argue that creativity-related harms should fall within the scope of consumer protection, as creative harms are not competitive harms. However, this paper submits that this underestimates the broader structural impact that creativity has on competition. Instead of market power leading to traditionally anti-competitive exclusionary practices, creative harms manifest themselves through quasi-exploitative effects: consumer manipulation and the erosion of creativity. These undermine the competitive processes that make the gaming industry culturally valuable. Creativity is a competitive force, driving differentiation and market dynamism, disrupting the dominance of bigger studios as shown by ‘TVGS v Ubisoft’ later. It is well-known that harmful market structures producing negative consumer effects form a legitimate basis for antitrust involvement. Therefore, if gamers care about creativity, threats to it support the involvement of competition law. As White observes, Microsoft, Sony, and Nintendo each operate proprietary console ecosystems. They can control not only pricing and distribution, but also the rules of creative participation. 53 Gatekeeper power and platform control can suppress creative entrants and reinforce homogenised content within an already concentrated market. Indeed, some literature already cites the console industry as an oligopoly, where major players can strategically avoid disruptive competition. 54 Creativity is a disruptive force gamers care about, and its pro-competitive effects must be fostered to their benefit. Centring analysis on innovation outcomes fails to capture the degradation of creativity, particularly where dominant firms can exercise market power to exacerbate creative harms. The outcome is not merely reduced innovation, but what scholars have termed a ‘senescence of creativity’ – a market environment in which the conditions necessary for original and meaningful creation are increasingly choked off. 55 52 Peter Zackariasson, Timothy Wilson, ‘The Role of the Consumer: From Sales to Co-production’ in Sabine Hotho and Neil McGregor (eds), Changing the Rules of the Game (1st ed, Palgrave Macmillan 2013), 48. 53 Matthew White, ‘The Senescence of Creativity: How Market Forces are Killing Digital Games’ (2009) 3(4) Loading…, 2 <https://journals.sfu.ca/loading/index.php/loading/article/view/54> accessed 29 July 2025. 54 William Forgang, Karl Einolf, Management Economics: An Accelerated Approach (1st ed, Routledge 2015), 159. 55 White (n 53). 17 3.2.1. TVGS v Ubisoft Case Study Since its inception in 1986, Ubisoft has released approximately 530 games. Roughly one a month, this appears as a highly innovative and pro-competitive entity when measured by output. 56 Yet, Ubisoft has been consistently criticised for releasing games with widespread glitches, 57 and repetitive gameplay. 58 Many releases revolve around franchises like ‘Assassin’s Creed’, resulting in recycled gameplay mechanics. Its creative stagnation has been met with increasing consumer frustration, with one writer suggesting that a publisher once known for its creativity and trendsetting has become risk-averse, pressured to maintain its empire by churning out unoriginal releases. 59 As another writer noted: ‘Ubisoft wasn’t just another developer; they had a knack for creating unique, memorable experiences’ but eventually succumbed to ‘franchise fatigue’. 60 Whilst any business is intrinsically pressured to keep its shareholders happy, Ubisoft has lost the creativity which fuelled its rise and that its players valued. These issues are compounded by Ubisoft’s microtransactions, a supposed innovation which allows players to buy digital items with real money. Whilst optional payments for in-game content are not inherently problematic, Ubisoft intentionally makes certain items difficult or impossible to earn through gameplay, compelling players to buy them. When Ubisoft's medieval fighting game 'For Honor' was released, one player estimated it would take over 2.5 years of casual play to unlock everything, 61 or they could pay £610 on top of the game’s original price of £55. 62 Ubisoft’s latest title, ‘Assassin’s Creed Shadows’, continues this trend as the 14th game in the franchise, offering content only unlockable by paying. 63 This is not a critique of Ubisoft’s business strategies, rather, it illustrates a key point: not all forms of ‘innovation’ are valued by 56 Webster (n 4). 57 Leo Kelion, ‘Assassin's Creed: Unity criticised for widespread glitches’ (BBC, 13 November 2014) <https://www.bbc.co.uk/news/technology-30040613> accessed 30 June 2025. 58 Anthony Marcusa, ‘I'm tired of Ubisoft selling me the same game over and over’ (Pocket-lint, 6 September 2024) <https://www.pocket-lint.com/im-tired-of-ubisoft-selling-me-the-same-game-over-and-over/> accessed 30 June 2025. 59 Allen Julizar, ‘How Ubisoft Lost Its Way - A Gamer’s Lament and a Business Lesson For Us’ (Medium, 8 October 2024) <https://allenherlambang.medium.com/how-ubisoft-lost-its-way-a-gamers-lament-anda-business-lesson-for-us-2956ee44049b> accessed 1 July 2025. 60 ibid. 61 Kyle Orland, ‘Analysis: For Honor unlocks cost $730 (or 5,200 hours)’ (ArsTechnica, 21 March 2017) <https://arstechnica.com/gaming/2017/03/analysis-for-honor-unlocks-cost-730-or-5200-hours/> accessed 30 June 2025. 62 ibid; MCV Staff, ‘For Honor: Everything you need to know’ (MCVUK, 3 February 2017) <https://mcvuk.com/business-news/publishing/for-honor-everything-you-need-to-know-releasedate-price-beta-and-season-pass-info-merchandise-and-pre-order-deals/> accessed 30 June 2025. 63 Angshuman Dutta, ‘Does Assassin’s Creed Shadows Feature Microtransactions?’ (DeltiasGaming, 21 March 2025) <https://deltiasgaming.com/does-assassins-creed-shadows-feature-microtransactions/> accessed 1 July 2025. 18 consumers, especially when core content is locked behind paywalls, and innovation is reduced to superficial updates. Contrastingly, ‘Schedule I’, a drug-dealing simulator released by TVGS at approximately the same time as Assassin’s Creed Shadows, was produced by a solo indie developer with no marketing budget and likely a few hundred dollars in production costs. Whilst not as polished, it leaned into original engaging gameplay and content, priced at £16.75, 64 compared to Assassin’s Creed’s £59.99. 65 Despite its financial constraints, Schedule I achieved remarkable success, with the reception amongst gamers indicative of the reality of the gaming sector: consumers value creative, original experiences. Assassin’s Creed Shadows had 64,825 players at its all-time peak in the last 3 months and a 77.80% positive feedback rate on Steam, the dominant PC platform. Contrastingly, Schedule I had a peak of 459,075 and a positive feedback rate of 97.16%. 66 This is not to say that all gamers want unique games every year, or that AAA studios cannot be creative. This is reflected by the continuing sales success of long-term, non-original games like ‘Call of Duty’. But a creativity focus does not penalise large studios per se, instead protecting and fostering genuine creativity and diverse, quality innovation – whatever its source. It better captures what traditional innovation metrics miss: structural barriers and conduct that harms creative production and participation. Schedule I is evidence that games which focus on creativity can outperform gaming giants, mirrored by the larger industry trend that indie games have been generating as much revenue as larger studios on Steam. 67 The contrast between Ubisoft and TVGS is more than anecdotal. It illustrates that superficially, gaming is innovative and competitive: Ubisoft faces rival publishers, operates at scale, and sells products at competitive prices. Yet a creativity perspective reveals deeper structural concerns, with large firms such as Ubisoft and the later-discussed Microsoft/Activision Blizzard in a position to harm creativity in gaming. This is catalysed by the fact that the above companies also control their own gaming ecosystems and digital distribution platforms. They are more riskaverse and their profit focus risks them leveraging their platform power to foreclose real creativity, for fear of losing market share. Indie studios and, as seen later, users, are well placed to counter this stagnation, contributing both their own creativity to the market and a competitive pressure on incumbents, forcing them to do the same. Indeed, the indie market is 64 SteamDB, ‘Schedule I Steam Statistics’ (SteamDB, 30 June 2025) <https://steamdb.info/app/3164500/> accessed 30 June 2025. 65 SteamDB, ‘Assassin's Creed Shadows Steam Statistics’ (SteamDB, 30 June 2025) <https://steamdb.inf o/app/3159330/charts/> accessed 30 June 2025. 66 SteamDB, (n 64, 66). 67 Video Game Insights (n 33) 4. 19 the only one that continues to grow despite the industry’s wider slowdown. 68 Admittedly, indie creativity may not always triumph over the AAA studio content-pump, but saliently, they may not be given the fair chance to do so. Indie developers, vectors of disruptive creativity, face marginalisation not due to a lack of merit, but because current market structures and legal frameworks fail to adequately protect creative processes, evincing why they must be accounted for. 3.3. Why Process Matters As this paper has shown, when assessing innovation, authorities tend to focus on tangible outputs to evince innovation. 69 This approach is suited to industries like pharmaceuticals, where progress is driven by scientific R&D, tangible metrics ensuring legal certainty and justifying enforcement decisions. In gaming, value creation is as much creative as technical, and the output-based model misrepresents how value is created and experienced. There are two other factors relevant to innovation: who owns the assets and means of distribution, and the creative processes leading to it. 70 The prior two dimensions have featured in competition case law, but creative processes, the subject of this chapter, have been largely ignored. As mentioned, in Dow/DuPont the EC was focused on innovation output, not the processes leading to it, with the same occurring in Microsoft/Activision , as discussed in the next chapter. The case law has focused on outcomes like reduced innovation and distribution harms, overlooking the creative processes underpinning gaming innovation. Scholars mirror this gap, noting that research measuring the effect of acquisitions on innovation tends to analyse outcomes like turnover or patent activity. 71 Still, perhaps measuring outcomes nevertheless indirectly reflects creativity – patents require something ‘extra’ or ‘original’, thus creative input. A focus on outcome indirectly evinces successful creative processes, eliminating the need for a new approach. But in gaming, consumers value more than just output: like IP law, they distinguish between novel innovations and original creativity. Moreover, patent applications play a less prominent role in industries like gaming; innovation instead arising from collaborative creative processes that are later developed into new products. 72 Especially as the industry shifts towards subscription-based models, engagement 68 ibid 8. 69 Pabón (n 18) 7. 70 Yasar (n 1) 16. 71 Masakazu Ishihara, Joost Rietveld, ‘The Effect of Acquisitions on Product Innovativeness, Quality, and Sales Performance: Evidence from the Console Video Game Industry (2002-2010)’ (2017) 1 Academy of Management Proceedings, 3 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897264> accessed 29 July 2025. 72 ibid. 20 and longevity will outweigh momentary sales, supporting a view that diverse and quality innovation, fuelled by creativity, is as important as output. 73 Traditional innovation frameworks, suited to brick-and-mortar markets, cannot capture this, and moving towards other approaches, such as ‘gamer welfare’ and the later proposed ‘creativity lens’ is desirable. A useful analogy pertaining to the importance of process comes from sports. Typically, competition law prioritises the ‘competitive balance’ in matches: the idea that the playing strength of all the teams in a sports league is evenly matched. Fans are in enough doubt about the probable outcome of each game and will remain interested in watching, supporting television and ticket revenue. 74 This is supported by cases noting it as an objective to be protected in sports. 75 Yet, fan engagement is not driven just by who wins; it is also the processes occurring during the entire season: fantasy leagues, rivalries, and parallel tournaments. In response, a ‘fan welfare’ paradigm has emerged, advocating for the inclusion of the experiential and procedural dimensions of fandom, critical to properly understanding the sports market. 76 Indeed, fans are still ‘consumers’ in sports so some may argue it is better to persist with consumer welfare, protecting them by championing higher output and lower prices. 77 But it is precisely this focus on outcome that makes it unsuited for sports; fan welfare moves beyond it, and regulators gain a superior understanding of competition due to improved market assessments. By analogy, this paper arrives at ‘gamer welfare’. Gamers care about processes like modding, invisible under a traditional innovation or consumer welfare approach. As a user-led creative process, modding extends a game’s lifespan and fills gameplay gaps developers missed. It can even lead to global successes: ‘Counter-Strike’, a multi-million player game, began as a mod for another. 78 The value of this process is not just abstract, reflected by one modding platform serving over 64 million users and paying out more than $13 million to creators. 79 It is a player-led 73 Ali Hussain, ‘How the Video Game Industry Is Changing’ (Investopedia, 26 April 2025) <https://www.investopedia.com/articles/investing/053115/how-video-game-industry-changing.asp> accessed 28 July 2025. 74 Salil Mehra, Joel Zuercher, ‘Striking Out “Competitive Balance” in Sports, Antitrust, and Intellectual Property’ (2006) 21(4) BTLJ 1499, 1500. 75 C-519/04 Meca-Medina and Majcen v Commission [2006] ECR I-06991, [43]. 76 Oliver Budzinski, Arne Feddersen, ‘Should Organising Premier-Level European Football Be A Monopoly? And Who Should Run It? – An Economists’ Perspective’ in Jacob Kornbeck (ed), EU Antitrust Law and Sport Governance (1st ed, Routledge 2022), 88. 77 Antonio Capobianco, ‘Advantages and Disadvantages of Competition Welfare Standards’ (Note by BIAC, 15 June 2023), 6 <https://one.oecd.org/document/DAF/COMP/WD(2023)30/en/pdf> accessed 31 July 2025. 78 Eric von Hippel, ‘The User Innovation Revolution’ (MITSloan Management Review Interview, 21 September 2011) <https://sloanreview.mit.edu/article/the-user-innovation-revolution/> accessed 2 July 2025. 79 Nexus, ‘Nexus Mods’ (Nexus Mods Homepage, Statistics from 26 July 2025) <https://www.nexusmods.com> accessed 26 July 2025. 21 response to market gaps, also acting as a competitive force, and, as will be discussed regarding the creative stagnation of gaming innovation, it represents a call for more meaningful and original design. Yet, modding is invisible in standard competition assessments, generating few patents and seldom appearing in R&D budgets. This underscores the significance of gamer welfare and a creativity lens. Like fan welfare, they capture the other important dimensions of consumer value and enhance enforcement. 3.4. Creativity Lens Thus far, this paper has demonstrated that innovation as output is an imperfect metric, gamers value creativity, and a process-based approach is best suited to capture that. Therefore, this paper proposes adopting a ‘creativity lens’ – a competition framework that values not only innovation’s outcomes (price and quantity), but also its diversity, quality, and direction. It does this by focusing on the openness, autonomy, and diversity of the creative processes through which games are made, modified, and distributed. A ‘lens’ refers to a framework through which the law is analysed and applied. For instance, an ‘inclusivity lens’ has been recommended in response to the systemic underrepresentation and inequitable treatment of certain demographic groups in gig-economy markets in competition law. 80 The markets were not captured accurately: Black and Latinx workers were overrepresented in categories of work with lower wages, fewer protections and greater instability. 81 This lens meant considering how these sub-groups were affected by competition, something consumer welfare fails to do. Adopting new lenses, where appropriate, improves market definitions, better assesses consumer effects, and more efficiently targets enforcement. In gaming, creative harms are better revealed by a creativity lens, the metrics shifting from price, output, and innovation alone, accounting instead for market structures, conduct, and regulatory choices affecting creative processes. Rather than valuing innovation solely for new products or technical advancements, this lens foregrounds the creative mechanisms contributing to real gamer value. Neoclassical economists would argue that creativity is inherently subjective and unsuited for competition law, especially as it is harder to quantify than price. As an analytical tool, a creativity lens risks inconsistent or subjective enforcement. Competition law has been criticised as a 80 Rebecca Kelly Slaughter, ‘Inclusive Competition’ (2021) 1(2) CPI Antitrust Chronicle, 10 <https://www.competitionpolicyinternational.com/category/spring-2021-volume-1-number-2/> accessed 1 July 2025. 81 Christy England, Paul Tobias, ‘The Gig Economy by the Numbers’ (NIFWR, 2019-2021 statistics, 2023) <https://niwr.org/wp-content/uploads/2024/01/Gig-Economy-By-The-Numbers_TheInstitute_2023.pdf> accessed 1 July 2025. 22 regulatory obstacle to innovation and having an anti-growth effect, with some calling for it to return to a more administrable and objective grounding. 82 Creative value could be better protected and promoted through cultural policy and targeted funding, not antitrust intervention. There is also a risk of chilling the innovations authorities seek to promote by focusing on process: novel business strategies and efficiency-enhancing mergers could be interpreted as anti-creative, and therefore anti-competitive. Firms consequently become more risk-averse and innovate less, preferring to stick with current successful business models. This paper considers these concerns to be valid but ultimately unconvincing. The line between subjectivity and objectivity is already blurred, with competition authorities increasingly moving beyond purely economic assessments to evaluate non-traditional harms, like consumer privacy, 83 and the marginalisation of sub-groups. Authorities have adapted, using new assessment toolkits like the OECD’s gender-inclusive lens to increase legal certainty and enforcement quality. 84 Creativity, whilst complex, can be assessed through similarly structured frameworks and with competition law embracing the challenges of digital markets and social inequality; it can equally do so for gaming. Importantly, a creativity lens enhances, but does not replace, existing tools and legal standards. It augments analysis, with authorities interpreting familiar facts in ways that better reflect the reality of creative industries. It draws attention to the non-price dimensions of competition that are particularly relevant in gaming. Competition law aims to prevent restrictions and distortions of competition, arising from mergers, anticompetitive agreements and abuses of dominant positions. What is framed as ‘innovation’ under traditional frameworks may reflect homogenisation, franchise recycling, and exploitative monetisation practices that constrain gamer welfare. Creativity is clearly a medium of competition in gaming. If companies endanger creative processes with the effect of harming actors like indie studios and gamers, such practices fall within the legal scope. Cases like Epic v Apple and Microsoft/Activision indicate a willingness by regulators to protect gaming markets; 85 a creativity lens allows them to achieve that aim more effectively by treating creativity as a central dimension of competition. 82 Commission (n 34); BBC (n 35). 83 Bundeskartellamt, Case B622/26 (Case Summary, 6 February 2019) <https://www.bundeskartellamt.de/SharedDocs/Entscheidung/ EN/Fallberichte/Missbrauchsaufsicht/2019/B6-22-16.pdf?__blob=publicationFile&v=> accessed 1 July 2025. 84 OECD, ‘Gender Inclusive Competition Toolkit’ (Report, 2023) <https://www.oecd.org/en/publications/2 023/09/gender-inclusive-competition-toolkit_60844c97.html> accessed 1 July 2025. 85 James Clayton, ‘Epic v Apple: What have we learned?’ (BBC, 24 May 2021) <https://www.bbc.co.uk/new s/technology-57232824> accessed 1 August 2025. 23 Overall, this chapter has revealed three insights. First, a distinct group of consumers (gamers) value creativity, not just lower prices or more content. Ignoring this risks underenforcement as gaming’s demand-side effects are mischaracterised. Second, traditional innovation metrics, such as the number of games released or superficial technical updates, enable creative stagnation, simulating innovation whilst reducing real dynamic competition, which occurs through creativity. Third, the law can adapt to better protect the gaming industry. As the next chapter shows, creative contributors risk being sidelined not by superior efficiency, but through exclusionary tactics and a competition regime which cannot properly protect them. Innovation alone is an inadequate measure for creative markets like gaming. Consumer value lies not just in output but in creative processes. However, competition law, focused on price and innovation output, misses this. In response, this paper proposed a creativity lens – a framework to assess and protect the structures that support creative diversity and consumer participation. It recognises that true welfare includes access to diverse content and the ability to meaningfully participate through creative expression. To protect gaming, competition law must evolve. Creativity is not just cultural – it is competitive – and must be preserved as such. 4. Microsoft/Activision Blizzard Through a Creativity Lens Microsoft’s acquisition of Activision in 2023 reveals important insights for gaming and competition law. This chapter first summarises the transaction, then critically re-examines the merger through a creativity lens. It highlights how user and indie studio creativity was overlooked despite its significance, and how cloud gaming can harm the diversity, quality, and direction of innovation in gaming. 4.1. Case Summary 4.1.1. The First Transaction On 18 January 2022, Microsoft announced that it was acquiring Activision. Six months later, the ‘Competition and Markets Authority’ (CMA) launched its Phase 1 investigation, later escalating to Phase 2 in September after finding a potential ‘substantial lessening of competition’ (SLC). The main concern, also identified by the EC, was that Microsoft could leverage popular Activision titles like ‘Call of Duty’ (CoD) to foreclose rival cloud gaming services. 86 86 Microsoft/Activision Blizzard (n 9). 30 and autonomy and towards meeting corporate deadlines. 116 Although gamers will play the releases more quickly – thereby increasing Microsoft’s revenue – they lose out on the creativity that might have emerged had indie studios retained greater creative independence. The prevalence of this is contested, but Microsoft itself admitted that there is a decline in base game sales 12 months after their addition to Game Pass. 117 This suggests that either more creative titles are released, and competition is strong, or that players are not being long-term engaged by original experiences, because of rushed development. With the current creative stagnation, exemplified by Ubisoft, the latter is more likely. Microsoft provides other indie programmes like ‘ID@Xbox’, leading to the release of over 1,000 titles and over $5 billion in royalties to developers – supported by cloud gaming and procompetitive from an innovation perspective. 118 Still, the selection process is opaque and discretionary, and participation may require compliance with technical or monetisation frameworks. Also, ID@Xbox, whilst positive from an innovation or outcome perspective, misses the harms that occur before release. As Whitehouse contends, the abilities to analyse, preserve, and reverse-engineer games are vital learning tools for aspiring developers, insights that disappear when data and code are locked behind cloud servers. 119 Although cloud gaming improves distribution efficiency and piracy protection, the loss of access to game code impedes creative education. It stifles the grassroots innovation that fundamentally shapes what the game becomes and who is allowed to meaningfully participate. Therefore, from the innovation or outcome perspective, cloud gaming is positive. It can be a useful technology, helping bring indie studios to market, reducing costs and increasing gamer choice. But through a creativity lens, it can be the opposite: disrupting the access of indie studios to game code and forcing platform compliance. The current market trend is increasingly headed towards cloud gaming, with 55% of games already based on access, not ownership. 120 Gamers value the benefits that cloud gaming brings, and it is not an inherently harmful nor anticompetitive technology. However, caution must be exercised regarding the creative constraints 116 James Batchelor, ‘Xbox experimenting with how to pay studios for Game Pass "because we don't think we have it figured out"’ (Games Industry, 25 November 2020) <https://www.gamesindustry.biz/xboxexperimenting-with-how-to-pay-studios-for-game-pass-because-we-dont-think-we-have-it-figuredout> accessed 5 August 2025. 117 Final Report (n 88) [5.60]. 118 Guy Richards, ‘ID@Xbox: Developers of All Sizes Are Finding More Success With Xbox – $5 Billion Paid Out to Date’ (Microsoft, 18 March 2025) <https://news.xbox.com/en-us/2025/03/18/idxbox-developersfinding-success-with-xbox/> accessed 6 August 2025. 119 Rich Whitehouse, ‘Streaming and Cloud Computing Endanger Modding and Game Preservation’ (Vice, 20 March 2019) <https://www.vice.com/en/article/google-stadia-game-streaming-game-history-andmodding/> accessed 19 July 2025. 120 ERA, ‘Yearbook’ (ERA, 5 March 2025), 17 <https://www.eraltd.org/yearbook> accessed 21 July 2025. 31 it can impose on indie studios. A creativity lens centres this problem, not only analysing price effects or the number of indie games on cloud platforms but asking how business conduct or prospective mergers affect the conditions of indie studio creativity. If the answers to these questions are anti-creative, the danger is not only that competition is distorted, but that gaming’s creativity is increasingly eroded. With the CMA’s failure to consider how cloud gaming may foreclose creative pathways for indie studios, they missed a vital layer of harm. Indie studios are not merely fringe businesses, instead they constitute a considerable bulk of the market in terms of quantity, quality, and market revenue. As cloud gaming becomes more dominant, the danger is that they will have to increasingly tailor their output to the technical and commercial frameworks of a few providers. Consequently, they lose the attributes that make them a more competitive force. To preserve quality gaming innovation, regulators must expand their scope. A creativity lens does not oppose technical progress like cloud gaming, instead requiring that key creative processes like indie studio development are accounted for, not harmed by negative changes to infrastructure or game development. Cloud gaming should not be allowed to become a bottleneck through which all innovation must pass. For indie developers, platform diversity, ease of entry, and retention of creative control are not luxuries but competitive necessities – regulators must act accordingly. Concluding, some will contend that creative processes are a niche concern. Sticking to a traditional enforcement approach is less burdensome and provides for easier analysis. However, this paper has supported the stance that the CMA did not make an error in principle but neglected to account for creativity, the real value-driver in gaming, by relying on an outdated and improper framework. It is effective in conventional industries, but ill-equipped to capture innovation harms that arise in creative and community-driven industries. A creativity lens makes visible what the orthodox obscures: the processes which lead to gaming innovations, who pursues them, and under what conditions. Harms to competition and consumers do not just arise through platform foreclosure; they also occur through the restriction and control of creative pathways and competition law must recognise this. A creativity lens does not discard the toolkit; it expands it to allow for a better mapping of gaming and prioritises not just innovation’s outcomes, but also its diversity, quality, and direction – which gamers value. 5. Conclusion This paper began with the observation that competition law treats ‘more content’ as synonymous with ‘more innovation’ whilst overlooking the conditions that allow creative processes to flourish. By critically examining gaming’s structure, actors, and regulatory treatment, it revealed 32 that this reality is dangerous. Gaming’s value and competitiveness stems from the diversity, autonomy, and openness of creative processes, as well as technological advances and increased output. When creativity is suppressed, gamer welfare is diminished, even if conventional innovation metrics find consumer welfare to be positive. Chapter 2 demonstrated that the current focus on outcome shows that R&D spend, patent activity, and product output are blunt instruments, carried over from innovation analysis in noncreative industries and capturing neither the source nor quality of creativity. This makes it possible for incumbents to appear innovative whilst recycling the same game formulas and monetisation strategies as evidenced by the TVGS v Ubisoft case. A solo-developed yet creative title outperformed a developer giant because it offered an originality that resonated with players, displeased with the lack of originality in AAA studios’ output. Chapter 3 established that creativity and innovation, though related, are distinct. Creativity is an original process, often iterative and collaborative, whose value is not dependent on commercialisation. Gamers noticeably care about this process, whether through modding, community-led design, or indie studios, yet current enforcement approaches rarely acknowledge creativity as a competitive parameter. This omission means that harms to gamer welfare – understood as encompassing not only price but creativity – are often left unaddressed. The Microsoft/Activision case study in Chapter 4 reinforced the lack of creativity’s capture during enforcement: the CMA’s orthodox foreclosure theory left unexamined how cloud gaming and IP consolidation threatens the creative processes of users and indie studios. As a result, the diversity, quality, and direction of innovation in gaming is compromised. Traditional analysis frames developments like removing modding opportunities and reducing the creative autonomy of indie studios as harmless, unless they produce measurable effects on outcomes. But this misses the real issue – that creative harms are competitive harms, eroding the mechanisms responsible for the dynamism of the gaming industry. Therefore, this paper has proposed a ‘creativity lens’ as both an analytical tool and a means of achieving better remedies. It broadens the scope of competition without abandoning established standards by integrating considerations of the openness, autonomy, and diversity of creative processes alongside outcome-based measures of innovation. This approach would have sharpened the CMA’s understanding of gaming in Microsoft/Activision , prompting further scrutiny of its impact on user creativity and indie studios. Crucially, a creativity lens does not automatically proscribe mergers or dominant conduct by anyone except indie studios and users; rather, it ensures that any changes affecting indie games or user creativity are also assessed. 33 This enforcement approach could require merging parties to continue to facilitate modding through local-install options or public code, and maintain platform diversity for indie titles, as well as AAA ones. Creative process foreclosure could be identified as a distinct theory of harm, grounded in the competitive value of those processes. Looking forward, there is reason for both caution and optimism. Cloud gaming subscription models will likely become more common, increasing the barriers to creative participation. Without intervention, the market risks moving towards a homogenised, high-output, lowcreativity scenario. Still, that same development, if properly regulated, can lower distribution costs, expand the reach of indie studios, and potentially foster new forms of co-creation. The industry is at a crossroads; its innovative direction dependent on whether competition law recognises that creativity is a competitive parameter worth protecting. Indeed, there are limits to what this research has achieved. The creativity lens remains at an early conceptual stage and full operationalisation requires clear competitive indicators, a willingness by regulators to engage, and toolkits to guide enforcement and increase predictability. This paper has neither attempted to resolve the challenges of measuring creativity, nor assessed fully how a creativity lens would operate in practice. Undoubtedly, these are important areas that future research can address. However, this paper has provided a strong foundation supporting its inclusion. The creativity lens better safeguards the cultural and economic value of gaming, ensuring that future innovation is not only plentiful but meaningful. 34 Bibliography Articles Aghion P et al., ‘Competition and Innovation: An Inverted-U Relationship (2005) 120(2) The Quarterly Journal of Economics 701 Castillo-Vergara M et al., ‘The Creative Process and Innovation: The Role of Knowledge Management and Industrial Cluster’ (2022) 26(6) International Journal of Innovation Management 1 Cropley D et al., ‘Measuring Creativity for Innovation Management’ (2011) 6(3) Journal of Technology Management & Innovation 14 Deutscher E, Makris S, ‘Sustainability concerns in EU merger control: from output-maximising to polycentric innovation competition’ (2023) 11 Journal of Antitrust Enforcement 350 Dunne N, ‘Public Interest and EU Competition Law’ (2020) 65(2) The Antitrust Bulletin 256 Ishihara M, Rietveld J, ‘The Effect of Acquisitions on Product Innovativeness, Quality, and Sales Performance: Evidence from the Console Video Game Industry (2002-2010)’ (2017) 1 Academy of Management Proceedings <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897264> accessed 29 July 2025 Lianos I, ‘Polycentric Competition Law’ (2018) 71(1) Current Legal Problems 161 Martinez A, ‘A Fortnite and Odd Days: The Console Wars’ (2022) 6(2) Market and Competition Law Review 51 Mehra S, Zuercher J, ‘Striking Out “Competitive Balance” in Sports, Antitrust, and Intellectual Property’ (2006) 21(4) Berkeley Technology Law Journal 1499 Mobley J, ‘Effective Marketing and Monetization Strategies Used in Small Independent Game Development’ (2025) 1 Walden Dissertations and Doctoral Studies <https://scholarworks.waldenu.edu/dissertations/16963/> accessed 6 August 2025 Slaughter R K, ‘Inclusive Competition’ (2021) 1(2) CPI Antitrust Chronicle <https://www.competit ionpolicyinternational.com/category/spring-2021-volume-1-number-2/> accessed 1 July 2025 Thomas A et al., ‘Competition in the cloud gaming market: proposing the innovation–creativity dichotomy’ (2025) 8(2) Interactive Entertainment Law Review 1 35 White M, ‘The Senescence of Creativity: How Market Forces are Killing Digital Games’ (2009) 3(4) Loading… <https://journals.sfu.ca/loading/index.php/loading/article/view/54> accessed 29 July 2025 Yasar A et al., ‘Gaming Without Frontiers: Copyright and Competition in the Changing Video Game Sector’ (CREATe Working Paper 2023/10, 2023) <https://eprints.gla.ac.uk/307648/2/307648.pd f> accessed 10 July 2025 Chapters In Books and Books Budzinski O, Feddersen A, ‘Should Organising Premier-Level European Football Be A Monopoly? And Who Should Run It? – An Economists’ Perspective’ in Jacob Kornbeck (ed), EU Antitrust Law and Sport Governance (1st ed, Routledge 2022) Christie A, ‘Creativity and Innovation: A Legal Perspective’ in Leon Mann and Janet Chan (eds), Creativity and Innovation in Business and Beyond: Social Science Perspectives and Policy Implications (1st ed, Routledge 2011) Forgang W, Einolf K, Management Economics: An Accelerated Approach (1st ed, Routledge 2015) Gürkaynak G, Innovation Paradox in Merger Control (1st ed, Concurrences 2023) OECD/EuroStat, Oslo Manual 2018 (4th ed, OECD Publishing 2018) <https://www.oecd.org/conte nt/dam/oecd/en/publications/reports/2018/10/oslo-manual-2018_g1g9373b/9789264304604en.pdf> accessed 9 July 2025 Schumpeter J, Capitalism, Socialism, and Democracy (1st ed, Routledge 2003), <https://periferiaactiva.wordpress.com/wp-content/uploads/2015/08/joseph-schumpetercapitalism-socialism-and-democracy-2006.pdf> accessed 9 August 2025 Zackariasson P, Wilson T, ‘The Role of the Consumer: From Sales to Co-production’ in Sabine Hotho and Neil McGregor (eds), Changing the Rules of the Game (1st ed, Palgrave Macmillan 2013) Cases Bayer/Monsanto (Case COMP/M.8084) [2018] 1709 final CMA Microsoft/Activision Blizzard (ex-cloud streaming rights) Merger Inquiry CMA Microsoft/Activision Blizzard Merger Inquiry David Meca-Medina and Igor Majcen v Commission of the European Communities (Case C-519/04) [2006] ECR I-06991 36 Dow/DuPont (Case COMP/M.7932) [2017] OJ C353/9 Facebook, Exploitative business terms pursuant to Section 19(1) GWB for inadequate data processing (B6-22/16, Bundeskartellamt Decision of 6 February 2019) Intel Corporation Inc v Commission (Case C-413/14) [2017] OJ C374/2 Microsoft/Activision Blizzard (Case M.10646) [2023] 3199 final Conferences ICN, ‘Competition Enforcement and Consumer Welfare’ (ICN Conference, Hague, May 2011) <https://www.internationalcompetitionnetwork.org/wpcontent/uploads/2019/11/SP_CWelfare2011.pdf> accessed 2 August 2025 Scacchi W, ‘Modding as a basis for developing game systems’ (33rd International Conference on Software Engineering, Honolulu, May 2011) <https://dl.acm.org/doi/pdf/10.1145/1984674.198467 7> accessed 7 August 2025 Legislation, Guidelines, and Regulations CMA, ‘Merger Assessment Guidelines’ (2021) CMA129 Competition Act 1998 Consolidated version of the Treaty on European Union [2012] OJ C326/13 European Commission, ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements’ [2023] OJ C259/1 European Commission, ‘Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings’ [2004] OJ C31/5 Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) [2022] OJ L 265/1 Websites Batchelor J, ‘Xbox experimenting with how to pay studios for Game Pass "because we don't think we have it figured out"’ (Games Industry, 25 November 2020) <https://www.gamesindustry.biz/ xbox-experimenting-with-how-to-pay-studios-for-game-pass-because-we-dont-think-wehave-it-figured-out> accessed 5 August 2025 37 Burt D, ‘FromSoftware’s Influence: A Legacy of Challenge and Discovery’ (Brig Newspaper, 7 March 2025) <https://brignews.com/2025/03/07/fromsoftwares-influence-a-legacy-ofchallenge-and-discovery/> accessed 9 July 2025 Capobianco A, ‘The Relationship between Competition and Innovation’ (Note by Austria, 14 June 2023) <https://one.oecd.org/document/DAF/COMP/WD(2023)5/en/pdf> accessed 9 July 2025 Clayton J, ‘Epic v Apple: What have we learned?’ (BBC, 24 May 2021) <https://www.bbc.co.uk/n ews/technology-57232824> accessed 1 August 2025 Clement J, ‘Reasons for PC gamers in the United States and United Kingdom (UK) to play indie games as of October 2023’ (Statista, 15 February 2024) <https://www.statista.com/statistics/1 451137/indie-games-play-reason-pc-gamer/> accessed 21 July 2025 Clement J, ‘Video game industry - Statistics & Facts’ (Statista, 6 November 2024) <https://www.statista.com/topics/868/video-games/#topicOverview> accessed 8 August 2025 CMA, ‘Microsoft / Activision Blizzard (ex-cloud streaming rights) merger inquiry’ (CMA Website, 22 August 2023) <https://www.gov.uk/cma-cases/microsoft-slash-activision-blizzard-excloud-streaming-rights-merger-inquiry> accessed 1 August 2025 CMA, ‘Microsoft submits new deal for review after CMA confirms original deal is blocked’ (Press Release, 22 August 2023) <https://www.gov.uk/government/news/microsoft-submits-newdeal-for-review-after-cma-confirms-original-deal-is-blocked> accessed 5 August 2025 CMA, ‘Microsoft/Activision Blizzard Final Order’ (CMA Website, 22 August 2023) <https://assets.publishing.service.gov.uk/media/64e3764a3309b7000d1c9bd7/Microsoft_Acti vision_-_Final_Order.pdf> accessed 5 August 2025 CMA, ‘Microsoft/Activision Blizzard Final Report.’ (26 April 2023) <https://assets.publishing.ser vice.gov.uk/media/644939aa529eda000c3b0525/Microsoft_Activision_Final_Report_.pdf> accessed 19 July 2025 CMA, ‘Microsoft/Activision Blizzard merger inquiry’ (CMA Website, 6 July 2022) <https://www.gov.uk/cma-cases/microsoft-slash-activision-blizzard-merger-inquiry> accessed 29 July 2025 CMA, ‘Summary of Final Decision on possible material change of circumstances or special reason for deciding differently under section 41(3) of the Enterprise Act 2002’ (22 August 2023) 38 <https://assets.publishing.service.gov.uk/media/64e36e553309b7000d1c9bcb/MS_A__Summary_of_Final_Decision.pdf> accessed 5 August 2025 Cripe M, ‘Modern Warfare 2 Multiplayer Mod Cancelled the Day Before Launch After Activision Sends Devs Cease and Desist’ (IGN, 16 August 2024) <https://www.ign.com/articles/modernwarfare-2-multiplayer-mod-canceled-the-day-before-launch-after-activision-sends-devscease-and-desist> accessed 20 July 2025 Department for Business & Trade, ‘Strategic steer to the Competition and Markets Authority’ (Policy Paper, 15 May 2025) <https://www.gov.uk/government/publications/strategic-steer-tothe-competition-and-markets-authority/strategic-steer-to-the-competition-and-marketsauthority> accessed 9 August 2025 Draghi M, ‘The future of European competitiveness’ (Part A, 9 September 2024) <https://commission.europa.eu/document/download/97e481fd-2dc3-412d-be4cf152a8232961_en?filename=The%20future%20of%20European%20competitiveness%20_%20 A%20competitiveness%20strategy%20for%20Europe.pdf> accessed 2 August 2025 Dutta A, ‘Does Assassin’s Creed Shadows Feature Microtransactions?’ (DeltiasGaming, 21 March 2025) <https://deltiasgaming.com/does-assassins-creed-shadows-featuremicrotransactions/> accessed 1 July 2025 England C, Tobias P, ‘The Gig Economy by the Numbers’ (NIFWR, 2019-2021 statistics, 2023) <https://niwr.org/wp-content/uploads/2024/01/Gig-Economy-By-The-Numbers_TheInstitute_2023.pdf> accessed 1 July 2025 ERA, ‘Yearbook’ (ERA, 5 March 2025) <https://www.eraltd.org/yearbook> accessed 21 July 2025 European Commission, ‘A Competitiveness Compass for the EU’ (Communication, 29 January 2025) <https://commission.europa.eu/document/download/10017eb1-4722-4333-add2e0ed18105a34_en?filename=Communication_1.pdf> accessed 2 August 2025 European Commission, ‘Mergers: Commission clears acquisition of Activision Blizzard by Microsoft, subject to conditions’ (Press Release, 15 May 2023) <https://ec.europa.eu/commissi on/presscorner/detail/en/ip_23_2705> accessed 5 August 2025 European Commission, ‘Review of the Merger Guidelines: Topic C’ (EC Website, 2025) <https://competition-policy.ec.europa.eu/mergers/review-merger-guidelines_en> accessed 5 July 2025 39 Greffe X, ‘Managing Creative Enterprises’ (WIPO Creative Industries Booklet No 3, December 2006) <https://www.wipo.int/edocs/pubdocs/en/copyright/938/wipo_pub_938.pdf#:~:text=la ter%20when%20the%20product%20is,as%20well%20as%20their%20own> accessed 9 July 2025 Hussain A, ‘How the Video Game Industry Is Changing’ (Investopedia, 26 April 2025) <https://www.investopedia.com/articles/investing/053115/how-video-game-industrychanging.asp> accessed 28 July 2025 Jack S, Edwards C, ‘Government ousts UK competition watchdog chair’ (BBC, 21 January 2025) <https://www.bbc.co.uk/news/articles/c2d3e6zklxg> accessed 1 July 2025 Julizar A, ‘How Ubisoft Lost Its Way - A Gamer’s Lament and a Business Lesson For Us’ (Medium, 8 October 2024) <https://allenherlambang.medium.com/how-ubisoft-lost-its-way-a-gamerslament-and-a-business-lesson-for-us-2956ee44049b> accessed 1 July 2025 Kelion L, ‘Assassin's Creed: Unity criticised for widespread glitches’ (BBC, 13 November 2014) <https://www.bbc.co.uk/news/technology-30040613> accessed 30 June 2025 Marcusa A, ‘I'm tired of Ubisoft selling me the same game over and over’ (Pocket-lint, 6 September 2024) <https://www.pocket-lint.com/im-tired-of-ubisoft-selling-me-the-samegame-over-and-over/> accessed 30 June 2025 MCV Staff, ‘For Honor: Everything you need to know’ (MCVUK, 3 February 2017) <https://mcvuk.com/business-news/publishing/for-honor-everything-you-need-to-knowrelease-date-price-beta-and-season-pass-info-merchandise-and-pre-order-deals/> accessed 30 June 2025 Mitra R, ‘Indie Games that Became Major Success Stories’ (30 December 2024) <https://gamerant.com/indie-games-major-success-stories/> accessed 9 July 2025 Nexus, ‘Nexus Mods’ (Nexus Mods Homepage, Statistics from 26 July 2025) <https://www.nexusmods.com> accessed 26 July 2025 OECD, ‘Advantages and Disadvantages of Competition Welfare Standards’ (Note by BIAC, 15 June 2023) <https://one.oecd.org/document/DAF/COMP/WD(2023)30/en/pdf> accessed 31 July 2025 OECD, ‘Gender Inclusive Competition Toolkit’ (Report, 2023) <https://www.oecd.org/en/publications/2023/09/gender-inclusive-competitiontoolkit_60844c97.html> accessed 1 July 2025